by Joshua Bohn, Contributor

On August 16, 2013, Pennsylvania Judge Bernard McGinley issued a preliminary injunction to block Pennsylvania’s Voter ID Law from affecting Pennsylvania elections in November. This preliminary injunction was the result of a lawsuit, Applewhite v. Commonwealth. Though the trial concluded on July 31, 2013, the judge is still deliberating on whether a permanent injunction is appropriate. However, the preliminary injunction made it clear that Pennsylvania voters will not be required to show poll workers photo identification in order to vote in the 2013 November general election. The  injunction also restricted the voter ID law’s “soft rollout” features. These features would have required poll workers to inform voters that they would need photo ID to vote in the next election. The judge’s recent preliminary injunction does away with this requirement. Poll workers may still ask to see photo ID, but the voters still do not have to produce it in order to vote. 

Pennsylvania’s Voter ID Law was supposed to take effect in 2012, but most of its provisions have yet to see the light of day. On May 1, 2012, various interest groups and law firms filed a lawsuit for a permanent injunction against the Voter ID Law. These interest groups and firms represented the 92-year old Viviette Applewhite and her fellow plaintiffs. Ms. Applewhite has voted in all presidential elections save one since the 1960’s, but despite her best efforts she was unable to obtain a suitable form of identification that would satisfy the Voter ID Law. The Commonwealth Court of Pennsylvania denied the request for a preliminary injunction on August 15, 2012. The court’s opinion at that time hinged upon the availability of Pennsylvania Department of State (DOS) identification cards, which are available for free at Pennsylvania Department of Transportation (PennDOT) Driver License Centers. The court predictedthat this option would mitigate any burden the law imposes upon individuals lacking appropriate photo ID. Furthermore, the court refused to sustain the petitioners’ facial challenge to the constitutionality of the law. The judge reasoned that the petitioners focused their facial challenge on the short-term implementation of the law, rather than attacking future circumstances in which the law might be valid. The court thus held that the petitioners failed to raise a proper facial challenge because they did not prove that the law would be invalid under any set of circumstances. On appeal, the Pennsylvania Supreme Court vacated the Commonwealth Court’s order denying a preliminary injunction, and remanded the case back to the Commonwealth Court. The Pennsylvania Supreme Court held that the Commonwealth Court had made an improper predictive judgment that the DOS cards, combined with voter education efforts, would be sufficient to prevent voter disenfranchisement. Furthermore, the Pennsylvania Supreme Court held that the petitioners’ (now appellants) facial challenge could be sustained even if the law might be validly enforced in the future.

On remand, Commonwealth Court Judge Robert Simpson ruled that he was no longer convinced that the Voter ID Law would not result in voter disenfranchisement. He commented that he expected PennDOT to have issued more photo identification cards than it actually did. He also agreed with the petitioner’s argument that PennDOT would not be able to satisfy the estimated need for voter identification cards in the remaining five weeks before the 2012 elections. On October 2, 2012, the Commonwealth Court issued a partial preliminary injunction on the Voter ID Law for the November 2012 elections. The injunction prevented poll workers from requiring registered voters to produce photo identification in order to vote. However, the injunction was only partial because it preserved the “soft rollout” features of the law that required poll workers to inform voters that they would need photo identification to vote in the future. The soft rollout features remained intact when the injunction was extended on February 19, 2013 to cover the May 2013 primary elections. Judge McGinley’s recent decision, however, eliminated that requirement. Judge McGinley observed that the application of the “soft rollout” voter education requirements produced inaccurate information during the previous two elections. The court held that informing qualified voters that they would need photo identification to exercise their right to vote is equivalent to providing erroneous and even deceptive information.

Judge McGinley’s analysis touches upon concerns that, despite an injunction, the Voter ID Law might or might not have discouraged a large number of qualified voters from casting ballots in the 2012 and 2013 elections. There are multiple opinions on the matter. The Pennsylvania American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) conducted an analysis on the November 2012 Pennsylvania general election, and concluded with a 99% degree of certainty that between 35,239 to 36,613 predicted voters did not participate due to the Voter ID Law. However, another source predicted (in February) that it would be unlikely for the law to affect the outcome of the May 2013 primaries, or for it to have significant effects upon voter participation.

Judge McGinley, as of this date, is still deliberating on whether or not a permanent injunction is appropriate. At the very least, however, with the current preliminary injunction in force, the Pennsylvania Voter ID Law will be on extended vacation until 2014 at the earliest.


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